(concurring).
I concur with the majority opinion.
The problem of when an exception to a statute or ordinance must be pleaded has plagued the courts for many years. There are innumerable cases in the “criminal” field but few ordinance cases. The general principles are relatively easy to state but, as always, the application to particular facts is extremely difficult. The general principle requiring the informant to plead the negative is. stated as follows:
“Whenever an exception is contained in the section defining an offense, and *653constitutes a part of the description of the offense sought to be charged, the indictment must negative the exception, otherwise no offense is charged . But where . . . the section which defines the offense contains a proviso exempting a class therein referred to, from the operation of the statute, it is unnecessary to negative the proviso, but the exemption therein contained must be insisted on by way of defense, by the party accused.”
State v. Brown, 306 Mo. 532, 267 S.W. 864, 865, quoting from State v. O’Brien, 74 Mo. 549, l. c. 551. See also State v. Bockstruck, 136 Mo. 335, 38 S.W. 317; State v. Price, 229 Mo. 670, 129 S.W. 650; State v. Smith, 233 Mo. 242, l. c. 253, 135 S.W. 465; State v. Bess, 20 Mo. 419; State v. Shiflett, 20 Mo. 415; State v. Zammar, Mo., 305 S.W.2d 441 (quoting with approval State v. O’Brien, supra); State v. Bridges, Mo., 412 S.W.2d 455.
Another method of stating the general principle is that found in State v. Bridges, supra, l. c. 457, quoting from State v. DeGroat, 259 Mo. 364, 168 S.W. 702, l. c. 705:
“ . . . But where such exceptions are not a part of the statutory definition of the crime, where they are contained in distinct and independent clauses of the statute, or in separate sections, it is not usually necessary either to plead them or to prove them. Such exceptions are pure matters of affirmative defense.”
This ordinance, No. 54699, provides in Section twenty-five:
"No person shall cause or permit the emission of visible air contaminants in excess of the amounts specified . from the internal combustion engine of 3. A motor vehicle after the vehicle has moved more than 100 yards from a place where the vehicle was stationary.”
Then in a separate subsection, number “4”, it states:
“4. This Section shall not apply when the presence of uncombined water is the only reason for the failure of an emission to meet the requirements of this Section.”
I agree with the principal opinion for three reasons. First, the exception contained in subsection 4 is not descriptive of the offense sought to be charged. The offense is described in the body of Section twenty-five which states that no person shall permit the emission of visible air contaminants in excess of the specified amount from a motor vehicle after the vehicle has moved more than 100 yards. The offense is complete when the city alleges and proves the fact that the vehicle has moved more than 100 yards and emits visible air contaminants in excess of the amount specified, No. 2 on the Ringelmann Chart. The exception is not a part of the description of the offense sought to be charged. The description of the offense is the emission of visible air contaminants. Second, the exception is contained in a wholly separate paragraph numbered “4”. It is contained in a “distinct and independent clause” of the ordinance and in a “separate section”. Therefore, both formally and logically, the exception need not be pleaded by the City. Third, in recent years significant changes have been made in pleading municipal violations. Our Supreme Court has adopted rules relating to municipal courts. Rule 37.18 provides that “The information or complaint shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” Rule 37.20 permits a full “bill of particulars”. Rule 37.28 provides that “No information or complaint shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be . affected . . . tenth, for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits. . ” As the principal opinion points out, these rules relating to the sufficiency of a complaint are developed by our Su*654preme Court in Kansas City v. Stricklin, Mo., 428 S.W.2d 721, l. c. 725-726:
“Since a proceeding- for violation of a city ordinance is in the nature of a civil action, the same strictness in stating an offense is not required as in a criminal prosecution ... an information or complaint charging the violation of a city ordinance is ordinarily sufficient where it describes the act complained of in the language of the ordinance..."
The exception in Stricklin (that the manufacture, possession and storage of gambling devices in the city for the purpose of sale outside the limits of Kansas City) was not pleaded and the court implicitly held that the information was sufficient. This court followed the Stricklin decision in City of St. Louis v. Goldman, Mo.App., 467 S.W.2d 99. See also University City v. Redwine, Mo.App., 376 S.W.2d 609, 613.
The following considerations that are met in this case are pertinent to test the sufficiency of the complaint:
(1) The defendant must be fairly and accurately apprised of the nature of the charge,
(2) The charge must be sufficiently definite to bar a subsequent prosecution for the same action, and
(3) Any defect in the information which does not prejudice the substantial rights of the defendant on the merits is not fatal.
In conclusion, above and beyond the requirements demanded in pleading a violation of a municipal ordinance, we are dealing with an ordinance designed to preserve, protect and improve the air resources of the City of St. Louis so as to promote health, safety and welfare and the comfort and convenience of the inhabitants of the City. We cannot ignore the numbers of motor vehicles which pass through the St. Louis area daily, nor can we ignore the efforts made in recent years by the legislative bodies of government — Congress, the General Assembly and the Board of Aider-men of the City — to lessen air contamination. While the problems are not new, great emphasis is now placed on removing motor vehicle contaminants as much as possible.
Since I believe the complaint charged a complete violation, that it was unnecessary to allege the negative, that the Supreme Court Rules on pleading a violation of an ordinance have been satisfied, and for reasons of policy, I concur with the majority opinion.